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domestic relations


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4 family law topics
1. issues preceding marriage, getting married, consequences of being married

2. termination of marriage

3. economics of terminating marriage

4. children

procedural rules
conflict of laws principles
Unmarried cohabitants
Cohabitation--living together and having sexual relations
Will state of ma enforce contract between unmarried cohabitants?
Yes, provided consideration other than sex. We don't punish cohabitants.
ante nuptial agreement
Usually agreement that sets consequences for potential divorce
Two look approach to validity of ante-nuptial agreements
1. validity tested at time made

(a) Must make a fair and reasonable provision for economically weaker party as measured at time of execution.
-- fair and unreasonable unless contesting party stripped of all or essentially all marital interests.

(b) whether contesting party had full knowledge about other party's net worth and assets

(c) Waiver of alimony permissible if excplicitly set forth. Waiver of alimony is not per se violation of public policy.

2. validity tested at time of divorce

(a) enforced unless, due to circumstances occurring during the course of the marriage, enforcement would leave the contesting spouse without sufficient resources to support himself or herself (destitute or public charge)
When is ante-nuptial agreement upheld?
Apply 2 look approach--test validity at time made and at divorce

SOF must be satisfied
When can one party get gifts given prior to marriage back?
When gift is made in contemplation of the marriage.

(engagement ring)
How can one get married in MA?
1. ceremonial marriage

(a) need license
- permit state to ascertain that parties have capacity to marry

(b) need ceremony
- need officiant (civil officer empowered to give oath or clergyman)

2. common law marriage
-- Not recognized in MA
-- Common law marriages from other states are recognized in MA.
Consequences of marriage with respect to each other
1. obligation of sexual exclusivity

2. reciprocal duty of support

**for all other purposes, married people retain their separate identities. E.g. solely liable on contracts or torts, can commit crimes and torts against one another
When can spouse be held liable for other's debt?
1. on debt for necessaries (food, shelter, clothing)

2. when agency relationship
How can marriage be terminated?
1. annulment
- when grounds (impediments) asserted predate marriage.
- about capacity problems
- These grounds impede valid marriage

2. divorce
- based on problems that arise after the marriage
Two types of grounds for annulment
(1) impediments that void marriage

--1: don't need annulment bc not married. People get annulments nevertheless for clarity of record, and court's assistance on custody and property issues.

--2: impediments are not waivable. Not married regardless of attempted waiver because issues agaisnt public policy.

--3: can be collaterally attacked by third party.

(2) impediments that make marriage voidable

--1: married until dissolved by court

--2: these impediments can be waived as only involve issues of equity or fairness between spouses.

--3: can only be attacked or annuled by one of the two spouses
Why get annulment when impediments to marriage made marriage void?
1. to clarify record

2. to get court's assistance with regard to property or children
H and W get married. H dies but didn't write will. No kids. W expects estate to pass to her under intestacy laws. H's brother contests marriage as void.
Third party can challenge marriage if impediment is one to make marriage voidable. Collateral attack is permissible. For reasons of public policy.
Grounds for annulment
1. Void grounds

(a) bigamy

(b) parties too young (ratified if underage spouse stays in relationship after reaching age 18)

(c) incest (ancestors, descendants, lineal relatives up or down one generation) Incest laws apply to blood and affilial relatives as well.

2. Voidable grounds

(a) lack of mental capacity
--mental illnes
--developmental disability
--drunk/stoned to get license or ceremony (waivable when faculties recovered)

(b) duress
--married with gun to head

(c) fraud
-- when one fiance lies about or conceals something very important from other spouse
--misrepresentation must go to essence of marriage
Who can't man marry under incest laws?
1. ancestors
man, mother

2. descendents
daughter, granddaughter

3. sister
lineal relative

4. aunt or niece
lineal relatives up or down one generation

5. not mother in law
- applis to affilial relatives too

*father in law and daughter in law can get married

* first cousins can lawfully marry
W is 82 and has Alzheimers and is widow and has adult children from prior marriage. W has 5 million.

H is 26 and marries W. What can adult kids do?
Become appointed as guardian and litigate an annulment.
misrepresentations or concealments regarding religion
Fraud grounds for annulment
--when degree of religious ovservance or devotion
-- when lie about religion
When is ante-nuptial contract valid in MA?
1. doesn't alter or dissolve marriage

2. writing

3. fiar and reasonable at time of execution AND time of divorce

* provisions waiving alimony always unreasonable if leave spouse as public charge
* impending marriage is part of consideration
Restrictions on who can marry?
1. sufficient mental capacity to understand nature of acts, significance of marriage

2. consent to make contract required

* fact that party has conservator due to inability to manage property doesn't establish incapacity to marry

3. sufficient age of 18

4. Lack of incestuous relationships

5. no bigamy

6. same sex couples can marry
Procedural requirements for marriage
1. license

2. ceremony
MA residents who marry in another state to avoid laws of MA
Not considered married when return to MA
Can third party pay couple to marry?
No, marriage void
Marriage defined in MA
voluntary union of two persons as spouses, to exclusion of all others

under which the law imposes obligations and liabilities
Consequences of desertion or neglect of spouse or child
breach of duty to support.

subject to criminal liability if refuse to provide for support or maintenance of spouse or minor child
Void v. voidable impediments to marriage
1. Void marriage
--never existed
--no subsequent act can ratify
--any interested party may seek annulment at any time
--defense that impediment doesn't exist

2. voidable marriage
--can be ratified, voidable impediments waived
--only spouses can seek annulment
--valid marriage until declaration of annulment
--defenses of laches, estoppel, ratification, imepediment doesn't exist
Grounds for void and voidable marriages
1. Void
- bigamy
- incest
- nonage

2. voidable marriage
- mental incapacity
- duress
- fraud going to essence of marriage contract
Defenses to attempted annulment of
1. void marriage
2. voidable marriage
1. void marriage
(a) impediment does not exist. If impediment is removed, marriage becomes voidable

2. voidable marriage
(a) impediment doesn't exist
(b) ratification
(c) laches
(d) estoppel
When does MA have jurisdiction?
1. If parties have lived together as husband and wife and the cause for divorce arose in MA

2. Both parties resided in MA as husband and wife AND one party lived in MA when cause for divorce arose

3. One party resides in MA for one year and cause for divorce occurred outside MA

4. party resides in MA at time of filing and cause for divorce occurred in MA

**no jurisdiction when party moved into MA for purpose of seeking divorce
Personal jurisdiction
1. long arm statute for support awards

2. can modify prior domestic relations order if court had personal jurisdiction over person when order entered and moving party lives in MA

3. d was domiciled in MA while married or in personal relationship from which claims arose
1. if one party still resides in county where couple last resided as husband and wife, venue only in that county.

2. otherwise, venue in county where either party resides
Fault grounds
1. adultery
-- proved by adulterous disposition and opportunity

2. cruel and abusive treatment
--deliberate abuse that knew would impair health of defendant's spouse

3. desertion
--voluntary departure
--without justificaiton
--without intent to return
--without consent
--not live together for one year prior to filing

4. impotency

5. gross and confirmed intoxication

6. nonsupport
--must be gross, wanton, or cruel and
--spouse must have had ability to support

7. sentence to confinement in penal institution for 5 years or more

**no fault grounds
Affirmative defenses to fault grounds
1. condonation
--resumption of marital relations

2. collusion

3. connivance

4. insanity
irretrievable breakdown of marriage
When both spouses unwilling to cohabitate

no prospects for reconciliation
Effective date of divorce
Three months after divoce judgment

--never becomes final if spouse dies
--resumption of marital relations can be used to attack judgment in those three months
rights during pendency of divorce
1. temporary orders

2. automatic restraing from selling, transferring, encumbering, or otherwise disposing of real or personal property assets
Alimony: factors to consider
1. length of marriage

2. conduct of parties during marriage

3. age, health, station in life, occupation

4. vocational skills and meployability

5. amount and sources of income available to each party

6. liabilities and needs of each party

7. estate of each party

**not awarded for contribution to other spouse's business during marriage
Possible forms of alimony awards
1. assignemnt of all or part of asset

2. periodic payments
When is alimony modifiable?
when material change in circumstances of paries
effect of death of party on alimony payment
terminates right
effect of remarriage on alimony
1. can be material change in circumstances warranting termination

2. doesn't automatically terminate unless in agreement
effect of bankruptcy on alimony
doesn't discharge obligation to pay
effect of anulment on alimony
alimony unavailable
Factors considered in property division
1. same as alimony AND
2. present and future needs of children in marriage

1. contribution of each party in building value of estates
2. contribution as homemaker
inheritances in marital property division
1. already received inheritance subject to division

2. expected inheritance is factor to consider
What property can't be included in property division?
Social security old age benefits under federal law
Settlement agreements and court approval
Require court approval

settlement agreements required in no-fault divorce
When settlement agreement merged into divorce decree
Becomes part of court order- can be modified upon showing of material change in circs

If survives-retains independent contract status and may only be modified upon showing of MORE than material change in circumstances

**child support, custody, and visitation can always be modified on showing (1) material change in circs and (2) in best interest of child
What happens to alimony payment when payor spouse reduces own income?
Not material change in circumstances sufficient to reduce alimony
When can child support, custody and visitation be changed
(1) material and substantial change in circumstances

(2) modification is necessary and in best interests of child
How is property division modified?
Can't be modified.
Separate support

(1) defined
(2) grounds
(3) defenses
(4) when terminated
1. party to marriage obtains court protection without dissolving marriage. No requirement of physical separation of spouses. Awards include:
- custody
- use of assets
- support for spouse and minor children

2. desertion, living apart for justifiable cause, failure to support

3. condonation
removal of cause

4. terminated when
- subsequent divorce
- separation agreement
Standard for custody of children
Best interest of the child
Presumption for custody between mom and dad
Absent showing of lack of fitness of either parent, parents have equal right to custody
types of custody
1. legal
- right to make major decisions in child's life

2. physical
-actual possession and control
Effect of physical abuse on custody decisions
1. effects of abuse on child must be evaluated

2. if legal or physical custody awarded to abuser, judge must state how in best interest of child
When does MA court have jurisdiction over child custody case?
1. when MA home state of child

2. MA has been child's home state w/in 6 mths of proceeding AND one parent resides in MA

3. no other state has jurisdiction adn in best interest of child for MA to assume jurisdiction.

(4) necessary to protect child from abandonment, abuse, neglect
Visitation rights of
1. grandparemnts
2. de facto parents (no biological relation but lives with child and performs functions equal to or greater than those of legal parent)
1. Only if rebut objetions of fit parent (by preponderance of evidence) that denial of visitation will cause significant harm to the child by adversely affecting her health, safety or welfare

2. may obtain visitation over objection of fit biological parent
MA parental kidnapping prevention act
Crime for noncustodial parent to take child udner 18 without lawful authority to do so
Federal parenting kidnapping prevention act
each state must give effect to valid custody judgmetns entered by other states
When can state intervene into parent-child relationship?
When parents refuse to consent to potentially lifesaving treatment for child
When don't the chlid support guidelines apply?
1. noncustodial parent earns over 75,000/year

2. combined annual income of parents exceeds 100,000

3. parties have child support agreement that is fair, reasonable, and makes adequate provision for support of child

4. parents have shared or split physical custody

5. applicatio of guidelines would be unjust or inappropriate and not in best interests of child
How long can child support orders be made?
1. until 18
2. until 21 if child lives iwth parent an is principally dependent on that parent for support

3. until 23 if lives with parent, preincipally dependnet on parent due to enrollementin educational program

4. adult child who is so phycially or mentally impaired that incapable of supporting himself
Does duty of child support end:

1. on death or payor

2. on adotpion of child
1. not on death or payor but may be material change in cirs to modify

2. only when adoption decree entered
When is modificaiotn of child support possible?
When material change in circumstances AND in the best interests of the child
Attribution of income
When court determines that party is earning substnatially less than they could through reasonable efforts, may consider potential earning capacity rather than actual earnings
support obligations of stepparents
generally not obligated to pay chld support

although may when step parent has provided support for child for a number of years
Remedy for man who erroneously thought father and paid chlid support
Can't get money back
When does child support terminate?
1. emancipation of child by age
2. emancipation of child by marriage
3. termination of aprental rights
How does MA treat sister state divorces?
Accords full faith and credit if
(1) final and unmodifiable; and
(2) rendering court had jurisdiction

B) Res judicata compels recognition of sister state divorce even when d not domiciled in first forum WHEN
d appeared and participated in proceeding in first forum
How does ma treat custody orders of other states?
UCCJA requires state to recognize and enforce custody order of other state if

1) state had jurisdiction under UCCJA

2) or had temporary emergency jurisdiction
How does MA treat alimony and child support orders from other states?
Will enforce.

Can modify:
a) to extent modifiable in foreign jurisdiction if MA and other jurisdiction have personal jurisdiction


b) when decree not final and changed circumstances


c) when MA remains resdience of support obligee or child


d) as if rendedered by MA court if both parties are MA domicilaries
Who is child's father?

1. presumed to be spouse of birth mother

2. unless paternity successfully challenged by putative father

NON-MARITAL children

1. father who recognizes child

2. adjudicated to be father when paternity establisehd by clear and convincing evidence
Who can adopt?

1. Any person over 18 can adopt a younger person, except spouse, sibling, aunt, uncle of whole or half blood.
--married person's spouse must usually join petition.

2. Consent requirements
(a) consent of any chlid over 12

(b) consent of spouse of person to be adopted

(c) consent of child's lawful parents (of father only if previously supported/cared for child out of wedlock)

**parental consent not necessary if (1) court finds by clear and convincing evidence that biologicla parents are unfit; (2) court decides that in best interest of chlid not to require consent

**consent invalid if w/in 3 days of adopted child's birth

3. Other requirements

(a) pass investigation by DSS

(b) religion only considered if requested by parents

(c) no bar to same sex adoption
How are parental rights terminated?
1. emancipation
2. surrender to an authorized adoption agency
3. judicial termination
Do parents have obligation to support child who is ward of state?
to extent that able
Who are delinquents?
Children between 7 and 17 who commit an act that would be crime if committed by an adult.
Entitlement to go to public school
Anyone between 5 and 18 wihtout diploma.

6-16 must attend school
Abuse defined
attempting to cause or causing physical harm

placing anotehr in fear of imminent phsyical harm

causing another to involuntarily engage in sexual relations by force, threst, duress
When can one get a tro without notice to d?
When P demonstrates reasonable likelihood of an immediate danger of abuse

Must schedule hearing w/in 10 business days of order

Then can be granted for one year.

Then can be extended for any additional time reasonably necessary to protect p.
TRO remedies
1. refrain from contacting p

2. vacate household

3. refrain from abusing p

4. pay temporary child support

5. refrain from abusing children

6. pay monetary compensation to p

7. order that p's address be kept confidential

7. order surrender of license to carry firearms
One who willfully and maliciously engages in a knowing pattern of conduct directed to a specific person

that seriously alrms of annoys person

and would cause a reasonable person to suffer substatnail emotional distress

and makes an threat to place preson in immintent fear of death or bodily injury

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